On December 12, 2014, the National Labor Relations Board (NLRB or Board) voted 3-2 to issue a final rule to amend its representation election procedures. Among other things, the rule shrinks the time period between the date a union election petition is filed and the date the election is held. More significantly, the rule requires employers to provide a near-instantaneous substantive legal and factual response to an election petition — with the failure to do so resulting in a waiver of the employer’s right to raise substantive legal arguments to contest the election. Because the rule provides employers minimal time to respond to an election petition, employers should begin taking preparatory steps now so that they have a fair chance to respond to a union’s workplace organizing efforts.

Background on representation elections

A representation election conducted by the NLRB is the method by which a union can become the certified bargaining representative of a group of employees. The process traditionally begins with a union filing an election petition with an NLRB Regional Director and concludes with a secret ballot election conducted by the Board in which employees vote to decide whether they wish to be represented by a union.

In June 2011, the Board proposed broad changes to its representation election procedures. Due to the controversy surrounding this proposed rule, and the fact that more than 65,000 comments were filed in response to it, NLRB Chairman Mark G. Pearce proposed a less ambitious version of the rule in November 2011. The modified version of the rule was purportedly approved in December 2011; however, following a legal challenge brought by the United States Chamber of Commerce in May 2012, the D.C. District Court struck down the rule due to a failure of a quorum of the Board to actually vote on the rule.See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp. 2d 18 (D.D.C. 2012). The Board appealed the court’s ruling to the D.C. Circuit, but it withdrew its appeal in December 2013.

On February 5, 2014, the Board re-promulgated the initial proposed rule from June 2011. Again, the Board received “tens of thousands” of comments to the controversial rule, as well as over 1,000 pages of oral commentary generated from a hearing held by the Board. 

Changes made by the Final Rule

On December 12, 2014, the Board promulgated the final rule amending its representation election procedures. The rule makes a large number of changes in an effort to expedite various aspects of the election process. The key changes include the following:

  • Notice of Petition for Election. Within two business days after receiving a notice that a union seeks a representation election, the employer must post and electronically distribute a “Notice of Petition for Election.” Among other things, the Notice informs employees about the voting process. Previously, the posting of such a notice was voluntary, and the notice was less detailed.
  • Expedited Pre-Election Hearings. A pre-election hearing — held to determine such issues as the scope of the bargaining unit and NLRB jurisdiction — generally must occur eight days after the employer receives a notice that the union seeks a representation election, except “in cases presenting unusually complex issues.” The Regional Director may postpone the hearing in limited circumstances. The old rules did not require that a pre-election hearing be held within a certain period of time.
  • Required Pre-Election Statement of Position. Before the pre-election hearing is held, the employer is required to file a “Statement of Position.” (No such Statement of Position is required under the old rules.) This is arguably the most crucial change made by the new rule.
    • Contents. In the Statement of Position, the employer must provide certain background information, and present its position on all issues the employer intends to raise at the pre-election hearing, including: (1) the Board’s jurisdiction; (2) the appropriateness of the unit; (3) challenges to individuals’ eligibility to vote; (4) the existence of any election bar; and (5) the type, date(s), time(s), and location(s) of the election and eligibility period. The employer waives arguments not raised in a Statement of Position, except for challenges to the Board’s jurisdiction.
    • Preliminary Voting List. Along with the Statement of Position, the employer must produce a preliminary voter list (the prior rules do not require such a list until after the election has been directed). The list must include prospective voters’ names, job classifications, shifts, and work locations.
    • Due Date. The Statement of Position is due at noon on the business day before the pre-election hearing, with limited exceptions. In other words, employers have only one week to assemble and draft in a persuasive manner all of their substantive legal and factual arguments regarding the election. 
    • Amendments. An employer may amend its Statement of Position in a “timely manner” only if it can show “good cause.”
    • Offer of Proof. If a union disputes an issue raised in the employer’s Statement of Position, the hearing officer has discretion to ask each party for an offer of proof as to what evidence it has in support of its position on a disputed issue. Thus, an employer must be prepared to back up with evidence any arguments it raises in its Statement of Position.
  • Conduct of Pre-Election Hearings.

    • Continuances Discouraged. The pre-election hearing is to proceed day-to-day until completed, and a continuance will be allowed only under extraordinary circumstances.
    • Post-Hearing Briefs. Post-hearing briefs are permitted only when the Regional Director determines that they are necessary and only with respect to issues permitted by the Regional Director. The old rules gave parties the affirmative right to file post-hearing briefs, with limited exceptions.
    • Deferral of Eligibility and Inclusion Issues. The rule defines the purpose of a pre-election hearing as determining “if a question of representation exists,” meaning, determining whether a proper petition has been filed and the proposed unit is appropriate. Therefore, “[d]isputes concerning individuals’ eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted.” The Board’s website clarifies that Regional Directors “may defer litigation of eligibility and inclusion issues affecting a small percentage of the appropriate voting unit to the post-election stage if those issues do not have to be resolved in order to determine if an election should be held.” 
  • Notice of Election and Time/Date of Election.

    • Notice of Election. The employer must, at least three full working days prior to the day of the election, post copies of a Notice of Election in the workplace, and distribute the Notice to employees electronically. The Notice must remain posted until the end of the election.
    • Elections Set for Earliest Date Practicable. The Regional Director must set the election for theearliest date practicable. By contrast, under the old rules, an election would be held between 25 and 30 days after the direction of election to permit requests for review to be ruled on by the Board in the interim.
  • Provision of Voting Lists. The employer has only two business days (instead of seven days under the old rules) after the Regional Director issues a direction of election to provide a list of eligible voters to the union. That list must include the voters’ personal home and cell phone numbers and email addresses (in addition to home addresses, as previously required). 

  • Expedited Post-Election Hearings.

    • Time to Object. After an election, parties have seven days to file both objections and offers of proof in support (previously, offers of proof could be filed within 14 days after an election).
    • Post-Election Hearing Date. A post-election hearing (used to resolve outstanding challenges to the propriety of the election), if determined to be necessary by the Regional Director, will be scheduled to open 21 days after the tally of ballots or as soon as practicable thereafter. Previously, the rules did not require that post-election hearing be held within a certain number of days. 
  • Review by the Board. The Board’s review of post-election disputes is discretionary, not mandatory. Previously, the Board’s review of post-election disputes was mandatory; only pre-election review was discretionary.
  • Electronic Transmissions. Employers and unions may transmit a larger scope of information electronically rather than in hard copy, including election petitions, election notices, and voter lists.

The bottom line is that, under the new rule, employers must be able to act very quickly to respond to a union’s election petition. The 2013 median time between petition and election was 38 days. Under the new rule, it is likely that most elections will be held between 10 and 20 days. 

One of the greatest challenges the new rule poses to employers is that, just seven days after being served with an election petition, an employer must prepare a Statement of Position on all of the issues it intends to raise in response to the petition for election, and if it fails to do so, it waives the right to raise those issues later. Additionally, given the possibility that the employer may be required to make an offer of proof in response to disputed issues, the employer must also prepare evidence that it will use to support the arguments it makes in its Statement of Position. Because this timeline is so restricted, it is critical that an employer conduct advance preparation — before receipt of an election petition and preferably even before any organizing activity — so that it will be ready to respond to potential organizing efforts in the future.

Effective date of new rule

The new rule will take effect on April 14, 2015. That said, it is virtually certain that the proposed rule will be subject to legal challenge. As noted above, tens of thousands of comments were filed in response to the proposed rule. Additionally, after the Board previously attempted to amend the election rules in late 2011, the U.S. Chamber of Commerce challenged the rules on the basis that they violated the National Labor Relations Act, exceeded the NLRB’s statutory authority, and contravened the rights to free speech under the First Amendment and to due process under the Fifth Amendment. The D.C. District Court did not rule on any of those arguments when striking down the amended rules, relying instead on the absence of a Board quorum; accordingly, it is likely that a challenger will resurrect those and similar arguments in an effort to invalidate the new rule now that it has been promulgated.

Next steps for employers

Because the new rule requires a near-instantaneous response to an election petition, not only to raise legal issues but also to present factual support, it is critical that employers take action in advance to prepare, such as: 

  • Considering how the employer would respond to union organizing and specifically whether it would want to oppose unionization of groups that could be organized.
  • Pre-drafting rough responses for a Statement of Position on potential disputes in advance, by considering issues such as Board jurisdiction, appropriateness of the bargaining unit(s), and proposed exclusions from the unit(s). This is critical, because the new rule limits the time to file a Statement of Position, and arguments not raised in the Statement of Position are waived.
  • Gathering relevant evidence relating to the issues that may be raised in a Statement of Position.
  • Assuming that the employer will oppose unionization, creating a “campaign-in-a-box” in advance of any union organizing efforts, including defining potential vulnerabilities and planning a response to address such vulnerabilities. The employer should consider themes to raise during the election, themes the union could raise, and how to respond to the union’s arguments.
  • Improving employee-relations programs to ensure that employees have a clear line of communication to managers and supervisors, including creating or updating “open door” policies, dispute resolution procedures, and other policies to give employees a voice.
  • Updating employee handbooks and policies to ensure fair treatment and eliminate unneeded controversial policies.
  • Proactively monitoring employee job satisfaction.
  • Training key management and supervisory staff regarding lawful and unlawful actions and statements in the event that organizing efforts begin in the workplace.

Employers must keep apprised of changes in the NLRB’s elections rules, as well as other changes in the rapidly evolving labor law landscape.